The complexity of academic freedom

As pretty much all the world knows, Ireland has recently experienced a major debate about the meaning of academic freedom. The particular context was the claim by University College Cork lecturer Dylan Evans that the university’s decision to discipline him for showing an academic paper on fellatio by fruit bats to a colleagues who had been made to feel uncomfortable by the encounter was an assault on his academic freedom. This is how Dr Evans set out the argument in writing to UCC’s management:

‘There are broader issues of academic freedom at stake here. If we cannot discuss scientific articles about topics directly related to our own research, published in leading peer-reviewed international journals, with colleagues in the same department, this bodes very ill for informed enquiry and debate.’

As it happens, Ireland is one of the few countries that actually has a statutory definition of academic freedom, in section 14 of the Universities Act 1997:

‘A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.’

Academic freedom so understood is there to ensure that academics can develop ideas or argue against the ideas of others without having to fear that they will be penalised for doing so. Academic freedom as defined in other jurisdictions (in particular Germany and the United States) has sometimes tended to focus more on the right of the institution to determine its own curriculum and to decide on the admission of students. But what all these have in common is that ideas should be protected, even if they are unwelcome.

But while it may seem easy to map out the terrain in which academic freedom operates, it can raise complex problems in practice. If we accept that an academic may hold, develop and disseminate unorthodox or controversial views, does this right refer only to views that we might regard as ‘expert’ views, i.e. related to his or her expertise or discipline, or does it have a broader remit? If my field is organic chemistry, are my views on corporate banking protected by academic freedom? If they are, why should my views on this be given greater standing than the views of non-academic members of the public? If they are not, how can it be right that my views receive no special protection, while the identical views of my colleague in the economics department do? And if my views are covered by academic freedom, does this mean (as Dr Evans contended) that he has a right to express these to someone who doesn’t want to hear them? Or put another way, does every person have a legal obligation to listen without protest to views delivered by an academic? To give an extreme example, does my academic freedom oblige all persons at a dinner party with me to be quiet as I expound my views? Are they behaving illegally if they object?

There is also another setting in which academic freedom is sometimes invoked. If an academic wishes to criticise his or her institution, or a policy or position adopted by it, is this part of academic freedom? Similarly, have I the right to publish my criticisms of my university to a wider audience under the general heading of academic freedom? If I have, does this apply if what I say is untrue? Or what would be the position if what I say is untrue and it inflicts damage on my institution? A recent decision by the United States Supreme Court, Garcetti v. Ceballos, though admittedly not dealing with a university issue, is thought by some to have placed restrictions on the legal protection that may be claimed by academics who want to criticise their institution. However, the right to be critical, particularly where the debate concerns the academic principles of the university, should not be dismissed too lightly.

However we may answer all or any of these questions, it is clear that academic freedom is at the heart of a university system for a democratic society. The free and unhindered flow of ideas is vital for any such society, and those who develop ideas, even where they are controversial or unwelcome (provided they are within the law), need to be protected. But we also need to avoid the suspicion that academic freedom is a claim by academics not to be accountable for what we say and do. A good start to getting this right and securing public confidence is not to apply the concept of academic freedom to situations where it does not belong, and Dr Evans’ fruit bat saga is one of these.

39 Comments on “The complexity of academic freedom”

A well thought out, balanced and incisive thought product.
Protected speech etc becomes a particularly issue on Web 2.0 ,where anyone with a device and a connection can spread disinformation to millions in a millisecond.
This can be particularly egregious if the posters of such disinformation use their academic affiliations to claim credibility, reliability and pedigree.
In the matter of Evans.
He has cried “wolf” on academic freedom at least three times.
1/In the Icon Books case re Steven Rose http://www.dylan.org.uk/brown.html
2/When the UK Telegraph declined to publish his praise of a terrorist and murderer– the Una-bomber http://www.dylan.org.uk/unabomber.html
3/In the current UCC matter

Three strikes and you are out—

Fortunately the Web 3.0 has a corrective mechanism — which we now see playing out in the current UCC matter.
An academic can post any assertion, claim or disinformation they like– but soon they attract a swarm of smart academics who will use an evidence based approach to examine their claims— the wisdom of smart crowds—
As Ye Sow, So Shall Ye Reap on Web 2.0

Once the swarm academic Web 2.0 verdict is reached the consequences are permanent, pervasive and personal—there is no where for the offender to hide– ever.

It is a self corrective mechanism of the open Web 2.0 which does not apply in states that have a top down command and control Web architecture — such as China and Iran- etc.
N Korea does not even have a Web 2.0 so that is the only refuge for those who violate academic trust on the Web 2.0

One should be free to express one’s view without any sanction because of that view, whether it’s within one’s area of expertise or not, by virtue of academic freedom and the basic right to freedom of speech. However, one should recognize the right of a sensitive person to seek redress if s/he feels intimidated by the way one’s view is expressed. Freedom is a two-way street; you have to give it as well as take it. Freedom’s best friend is equality.

I’m not sure the concept has much meaning when expressed like that. Everyone, whether academic or not, has the right to freedom of expression, much along the lines you suggest. The question here is whether academic freedom confers additional rights and protections, and if so, how and in what circumstances.

I admit I’m saying what I think ought to be true about freedom, freedom of expression and academic freedom rather than saying what currently is true in various settings.

It’s meaningful though. Perhaps you meant to say not relevant or germaine to your purpose.

But to me your purpose is unclear. Is it to:

a) describe what academic freedoms exist and whether fruitbatgate has breached any of them, or
b) specify what academic freedoms ought to exist and whether fruitbatgate has breached any of them, or
c) something else?

The information on academic freedom provided above by Professor Ferdinand von Prondzynski is, at best misleading, and at worse incorrect. For example, the statement that: “Ireland is one of the few countries that actually has a statutory definition of academic freedom” is contradicted by (inter alia) similar Acts in Czech Republic, Germany, Latvia, Luxembourg, Slovakia, Spain within Europe alone, and some are more explicit than that in Ireland. For example, in Slovakia, Law No. 131, 21 February 2002 on Higher Education. Section 4 states: Academic Freedoms and Academic Rights
(1) The following academic freedoms and academic rights shall be guaranteed at higher education institution:
a) freedom of scientific investigation, research, development of artistic and other creative activities and publicising their achievements;
b) freedom of teaching consisting especially in openness to diverse scientific opinions, scientific and research methods and artistic trends;
c) right of learning while preserving free choice of study specialisation within the framework of accredited study programmes, freedom of expression of one’s opinions during lecturing;
d) right of members of the academic community to elect the academic community bodies and be elected for them

Similarly, the statement: “Academic freedom as defined in other jurisdictions (in particular Germany and the United States) has sometimes tended to focus more on the right of the institution to determine its own curriculum and to decide on the admission of students.” is also incorrect. In the USA academic freedom is neither directly protected nor defined in law or in the Constitution, but is protected derivatively via interpretations of the Constitution’s First Amendment which forbids Congress from making any laws “abridging the freedom of speech.” Moreover, the judiciary has avoided clarifying the legal contours of the concept – Smith [Smith, S., (2002) “Who Owns Academic Freedom? The Standard for Academic Free Speech at Public Universities”, Washington and Lee Law Review, 59(1): 299-360, p 300] has noted that “federal courts often use, but do not explain, the term ‘academic freedom’”, indeed Stuller [Stuller, W. S., (1998) “High School Academic Freedom: The Evolution of a Fish out of Water”, Nebraska Law Review, 77(2): 301-343, p. 302] rightly remarks that “courts are remarkably consistent in their unwillingness to give analytical shape to the rhetoric of academic freedom”. Consequently, as Byrne [Byrne, J. Peter, (1989) “Academic Freedom: A Special Concern of the First Amendment”, Yale Law Journal, 99(2): 251-340, p. 257, 253] graphically describes, because the Supreme Court ‘has been far more generous in its praise of academic freedom than in providing a precise analysis of its meaning’, ‘[l]acking definition or guiding principle, the doctrine floats in law, picking up decisions as a hull does barnacles’. This situation is in marked contrast to, for example, Western European nations where academic freedom is invariably either mentioned in the Constitution or defined and protected by specific laws

There are international differences in the interpretation of the concept, but most scholars of academic freedom agree it has four elements: two are substantive, and two are supportive. The first substantive element is research freedom (the right to choose the subject for research and the methodology used, and to publish and disseminate research findings). The second substantive element is the teaching freedom (including the right to determine the curriculum, the mode of teaching, the method of assessment, etc). The supportive elements are academic tenure and the right to participate in academic governance. Professor von Prondzynski seems unaware that these four core elements are detailed in the 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel, (http://portal.unesco.org/en/ev.php-URL_ID=13144&URL_DO=DO_TOPIC&URL_SECTION=201.html), which was signed by the UNESCO members, including Ireland.

On governance, the Recommendation states (p.28, 30):
20. Autonomy should not be used by higher education institutions as a pretext to limit the rights of higher-education teaching personnel provided for in this Recommendation or in other international standards set out in the appendix.
21. Self-governance, collegiality and appropriate academic leadership are essential components of meaningful autonomy for institutions of higher education.
31. Higher-education teaching personnel should have the right and opportunity, without discrimination of any kind, according to their abilities, to take part in the governing bodies and to criticize the functioning of higher education institutions, including their own.

These elements of the UNESCO Recommendation provide an answer to the question posed by Professor von Prondzynski, viz. “If an academic wishes to criticise his or her institution, or a policy or position adopted by it, is this part of academic freedom?” The answer, according to UNESCO is, clearly, yes.

Thanks, Terence – interesting response. However, when I have a minute later today I’ll respond in more detail. I stand by my statement that Ireland is one of the few countries to define academic freedom. Even if all your examples are correct, that’s still very few countries. But in any case you are wrong regarding at least some of them. For example, article 5 of the German Constitution (Grundgesetz) protects academic freedom but does not define it; litigation has tended to focus on institutional autonomy and on the right of academics to determine the curriculum free from state interference (not necessarily respected in practice, by the way). US case law is complex, and sometimes not particularly supportive of academic freedom at all – again more on that later.

I agree that I should have mentioned the UNESCO Recommendation – more on that when I have a minute!

Anyway, would the fact that laws and definitions concerning academic freedom are different in different countries disprove Ferdinand’s statement about what he says is a definition of academic freedom in Ireland?

Enjoyed the post Ferdinand, and I certainly agree with you on batgate. Re your point on expert opinion, I often worry about this;
(i) does a cosmologist have the right to make public pronouncements on climate change? I hope so, but at the very least the commentator should make it plain that this is not his/her area of specialisation.
(ii)does a climate specialist have the right to make public pronouncements on climate change that differ from the consensus? Definitely, but it is important the media do not present it as a 50:50 debate.
(iii) does the historian David Irving have the right to make public pronouncements on WWII that differ from the consensus? Ditto, I think…but the Austrians don’t think so!

Thanks, Cormac. Clearly a cosmologist has the right to express views on climate change – as indeed does every citizen. I think my question is whether academic freedom applies here and, if it does, whether it confers some rights going beyond the constitutional protection of freedom of expression.

I would also add that Academic Freedom carries great responsibility. In my view an academic is obliged to speak up when they see a wrong doing in their subject area. Unfortunately, most academics don’t speak up enough.

Isn’t “academic freedom” essentially about a particular right granted to an academic as an employee of a university? It protects an academic from being fired or repremanded by their employer (the university) for holding an unpopular view or working on a controversial research direction. It also enables them to chose their research directions for themselves. As citizens they have the same rights and responsibilities as everyone else. It doesn’t entitle them to be abusive without consequence (or boring at dinner parties either!). In the Irish law, I would interpret “outside the University” as being a geographical condition: If an academic is interviewed in a TV studio (to take an example) and says something that upsets their university, they can’t be fired for it.

Academics have no magic extra “freedoms” beyond the right not to be sacked by their employer for saying and/or researching strange things. The “by their employer” part in Irish law is a hint at this, no?

Academics should have the freedom to criticise or support any policy as it relates to their role within a given institution, government or wider public arena. No non-academic would get away with publicallt airing the the insightful views of Prof Morgan Kelly, UCD and not be subject to sanction. Can you imagine an economist or a civil servant within the Dept of Finance publicly stating the same thing ? Or even better, a college administrator airing the views of Tom Garvin on Presidents within Irish universities.. I think not !

Non-academics like any other citizen are afforded ‘freedom of speech’ and it that context, yes of course they should be allowed air their views or criticisms. However, if those views/criticisms are in a public arena, they could be subject to sanction. The addition of new whistleblowing legislation should go some ways to protect them in this context, particularly if their views are of a critical nature.

Academics on the other hand are protected from such censure for good reason. It’s a bit like our judicial system where judges are afforded special freedoms in their judicial deliberations and public comments without the threat of censure. Of course, like all judges who face impeachment for misconduct or corruption, academics, even tenured ones, can also be dismissed for misconduct.

We still don’t know who leaked the confidential documents. It could be someone hostile to me who is trying to smear me. Or it could be someone friendly to me who realised that their publication online would show how unfairly I was treated by UCC. If it is the latter, the person who leaked the documents was very brave. In 1969, Daniel Ellsberg leaked the “Pentagon Papers” to the New York Times, knowing that this could well lead to him being sent to prison for the rest of his life. He put justice above his personal interests. Nixon then ordered the “White House plumbers” to break in to the office of Ellsberg’s psychiatrist to look for information to discredit him. At his trial, Ellsberg faced a maximum sentence of 115 years. Judge Byrne dismissed all the charges due to the government’s gross misconduct and illegal evidence gathering. http://bit.ly/jUu1e

We seriously think he needs help this could be a code 1 disaster- could some one local help him out?

@Victor, Evans just posted this … “We still don’t know who leaked the confidential documents. It could be someone hostile to me who is trying to smear me. Or it could be someone friendly to me who realised that their publication online would show how unfairly I was treated by UCC. If it is the latter, the person who leaked the documents was very brave.”

The documents that were leaked, and appeared all over the web from about midday on Saturday 14th May 2010, contain metadata that has only now been noticed. Of course anyone can check the website copies or copies that they have from May. Those metadata are:

It is interesting how Dylan Evans, or the Fruitbatgate monstrosity that he has spawned, manages to captivate the media into reporting his point of view without objectivity. Various organs reported that the IgNobels had “vindicated” or “exonerated” Dr Fruitbatgate (and the UCC student paper even reported that he had won the IgNobel Prize!).

Now his tame correspondent Hannah Fearn is reporting on the President’s Prize for teaching quality – but manages to fit in 6 paragraphs (of 13) on the progress of the harassing Dr’s High Court challenge.

I can imagine the following tweet, from Dylan Evans, being spoken in a number of different manners and settings. The information that convinces me of his state of mind is that this was tweeted AFTER the sexual harassment complaint and DURING the investigation.

@Digger what a mean spirited little piece that I stumbled across in an otherwise interesting posting and comment stream.

I have contested your suggestion that my blog is Dylan Evans in disguise in Ninth Level Ireland where I assume you post as @Doppleganger. Or maybe that is your brother?

If you actually read any of my pieces they try to show respect for all parties, all civil comments, including the ones I might disagree with and a search for a solution that best meets all parties interests. I do not post any abusive remarks. And both Ray and Victor amongst the above orrespondents have posted thoughtful contributions on my blog.

I have dealt with many cases of racial and sexual harassment professionally and none of my rulings ended up being contested by either side, though this was under UK not Irish law.

I try to actually engage in dialogue not abuse. Would be interested to hear your actual take on this issue, not just slagging off others’ takes without argument.

Ferdinand I enjoyed your piece, because you recognize conflicting freedoms, as do most of your posters. Though I think the Evans case has some link to academic freedom, the case has not served this cause well. I have paid practically no attention to blogsphere comments from any parties, so excuse my ignorance of some the 2.0 and 3.0 comments.

My apologies if it seems mean spirited to point out an almost obsessive interest in Dylan Evans, which “Creative Conflict Wisdom” has now deleted, as soon as this support for the Evans Is Innocent petition has been pointed out. The following pages are still available in the Google cache:

I prefer the term fascinated, as the case well illustrates the lack of interest based bargaining that dogs so much conflict. Though of course I have posted 256 comments unrelated to Dylan Evans in the time frame concerned. I did hear what you said about the number of postings. The comment columns on the issue also illustrate well my concept of ‘conflict autism’ or inability to see the conflict from the other side. S

o far @Steve you have made no comments on the conflict itself, just meta comments about my supposed identity or my ‘obsession’. So where exactly do you stand?

But I accept your apologies for being mean spirited and accordingly withdraw the comment. And maybe you have read the original piece now and my respect for Michael Murphy’s difficult position and the original complainant: it’s called conflict empathy by the way.

PS In case you still haven’t read the original posting, here is what I said there about Michael Murphy: ‘Then we have Michael Murphy President of University College Cork. A modernizer, no doubt wrestling with conservative forces. Trying to build a world-class university. Trying to attract external talent like Dr. Evans, and make Cork intellectually vibrant, cutting edge and a contributor to the economy of southern Ireland. Mindful of the need to create an inclusive culture. Wanting to ensure the campus is free from sexual harassment. No doubt troubled by the sexual abuse scandal that is rocking the Catholic Church. Presumably wanting to do the right thing.’

And at no time until the High Court case named her, did I name the complainant, fail to respect her position or say anything negative about her. I am used to being caught in the cross fire, never claim to mediate without some interests of my own: in this case fascination with interest based bargaining.